«COMMERCIAL RADIO INQUIRY Report of the Australian Broadcasting Authority Hearing into Radio 2UE Sydney Pty Limited February 2000 Sydney ISBN 0 642 ...»
♦ Off-air disclosure, ♦ On-air disclosure and ♦ A compliance program by the licensee.
Preliminary Issue An important preliminary issue is the nature of agreements requiring disclosure.
There is a wide range of agreements, which, if entered into by or on behalf of a presenter or producer and known to listeners, might affect the listener’s assessment of material broadcast.
Any commercial association between a presenter or producer and a third party may affect the broadcast treatment of material related to that third party. The Panel therefore recommends that any such agreement, pursuant to which a producer or presenter (directly or indirectly) receives valuable consideration, should be disclosed to the audience.
Off-air Disclosure Register The Panel recommends to the Authority that 2UE be required to maintain at its premises a
register of all such agreements. The register should identify:
♦ the date of the agreement; and ♦ the parties to the agreement; and ♦ the identity of the person or persons obliged to make payment to, for, or on behalf of the presenter; and ♦ the amount of consideration payable under the agreement in one of four categories:
(a) $10,000 or less per annum; or
The amount of consideration is to be calculated by adding together the value of monetary and non-monetary benefits provided pursuant to the agreement.
The register should also be published on any website that 2UE operates and should be linked directly to the home page. The register must be available for inspection by members of the public at the premises of the licensee during business hours at no charge.
The licensee should be required to provide copies of its register to the Authority and to notify the Authority of any update to its register within 14 days of being notified of any change. The Authority should also publish a copy of the register on the Authority’s website.
Obligation of Presenters and Producers In order to comply with such a condition, 2UE will need to ensure that presenters and producers are required to provide details of any such agreements as soon as practicable after they are entered into. The Panel recommends to the Authority that it should be a condition of the engagement of each presenter and producer that they must provide to the licensee details of each agreement entered into within 7 days of entering into the agreement.
On-air Disclosure Circumstances in Which a Disclosure Announcement is Required The Panel recommends to the Authority that the circumstances, which require a disclosure
announcement, be, unless specific exemptions apply, as follows:
♦ if the name, or the products or services, of a party to an agreement, or a related corporation of that party, are mentioned or to be mentioned on-air; or ♦ if an employee, contractor or other person directly associated with a party to an agreement is to be mentioned or interviewed on air; or ♦ the presenter mentions or is to mention an issue in which a party to an agreement has a direct or indirect financial interest in its outcome; or ♦ the presenter provides or is to provide opinion or editorial comment on an issue which directly or indirectly affects the business of a party to an agreement; or ♦ material is to be broadcast pursuant to the terms of any agreement.
Exceptions The Panel accepts that a disclosure announcement need not be made for anything that is broadcast in a news bulletin. This is on the basis that journalists compile news from news sources and presenters or their producers are usually not involved in this process.
Where the content of the program is clearly advertising, the listeners are left in no doubt as to who it is that is seeking to persuade them. Therefore the Panel accepts that such mentions in pre-booked advertisements should not trigger the requirement for a disclosure announcement to be made.
The exception is advertisements which are presented in a manner that a reasonable listener is entitled to assume is the reporting of news or the editorial comment or opinion of a presenter or the licensee. In such cases the existence of a commercial agreement should be disclosed.
In relation to all other genres of programming and in particular for any interviews or editorial comment made by a presenter, disclosure announcements should be made.
Nature of a Disclosure Announcement The purpose of the disclosure announcement is to advise listeners that the presenter has an agreement with, in simple terms, a particular person who is to be mentioned on-air or who is affected by an issue to be mentioned on-air.
Frequency of Disclosure Announcements The disclosure announcement should be made at the time of and as part of the broadcast of the material that requires a disclosure announcement. It can be broadcast before or after the material is put to air but must be broadcast as part of the material.
Commercial Agreements with the Licensee No evidence was presented which indicated that there were any commercial agreements between the licensee and a sponsor that provided for favourable on-air comment or treatment other than the normal commercial agreements for paid advertising. If there had been any such agreements the Panel would have had concerns about these agreements, and in the draft condition would have proposed their disclosure.
Compliance Program Implementation of this condition and ongoing compliance will require training to be conducted for the presenters, their staff and the staff of the licensee. This should include training on the operation of the political matter condition in clause 4(2) of Schedule 2 to the Act. The Panel recommends to the Authority that a firm of lawyers with expertise in broadcasting law and/or compliance programs (such as Trade Practices Act compliance programs) should conduct such training.
It is proposed that the training should be conducted at least twice in the first twelve months of the operation of the condition and at least once every twelve months thereafter. The firm that conducts the training should provide a written report to the Authority after the conclusion of each training program providing details of the training conducted and the staff of the licensee who undertook the training.
PAID ADVERTISEMENTS DISTINGUISHABLE FROM OTHER
PROGRAM MATTERThe Panel found that the Licensee had breached Code 3 on 30 occasions.
The purpose of Code 3 is to ensure that listeners are able to clearly distinguish paid messages from other messages. This is regardless of who involved in the presentation receives the payment – licensee, presenter or producer. In circumstances where there is no disclosure of a relevant commercial agreement it is difficult for listeners to tell whether a message they hear is a paid message.
Accordingly the Panel recommends that 2UE be required to ensure that all paid advertisements be presented in a manner which makes them clearly distinguishable from other program matter.
The Panel recognises that some program material may be designed or calculated to have a number of purposes, one of which may be to promote an organisation, product or service.
For example, the interview of Mr Hugh Rimmington by Mr Laws, which was paid for by the Nine Network had,418 as one of its purposes, to inform listeners as to the content of the particular show on the Nine Network that evening, but it also had as its purpose to promote the Nine Network and the ‘Australia’s Most Wanted’ program.419 The Panel is of the preliminary view that, if a substantial purpose of any program matter is to promote an organisation, product or service, then it should fall within the definition of ‘paid advertisement’.
It should not be necessary, however, to distinguish as an advertisement, a review of a product or service where the product or service has been provided, at no charge, solely for the purpose of review.
Transcript, Mr Brennan, p. 1269; Exhibit 66; Transcript, Mr Conde, p. 1439.
Exhibit 66; Transcript, Mr Brennan, p. 1269-1270.
DURATION OF CONDITIONSIt is suggested that the conditions should apply to 2UE’s licence for a period of three (3) years.
FIRST CONDITION – DISCLOSURE AND COMPLIANCE
ABA means the Australian Broadcasting Authority.
Act means the Broadcasting Services Act 1992.
Associate of a Presenter or a Producer means any person (including, without limitation, a corporation or a trustee of a trust) which has, or purports to have, the right to provide the services of the Presenter or Producer to any person.
Code means a code of practice for commercial radio broadcasting licensees.
Commercial Agreement means an agreement, arrangement or understanding, whether committed to writing or not, which imposes obligations on a Presenter or a Producer and pursuant to which the Presenter or Producer or an Associate of the Presenter or Producer receives any benefit or valuable consideration other than payment from the Licensee (other than an agreement, arrangement or understanding between the Presenter or Producer and an Associate of the Presenter or Producer).
Disclosure Announcement means an announcement referred to in Clause 3.1.
Licensee means Radio 2UE Sydney Pty Ltd or any transferee of the commercial radio broadcasting licence held by Radio 2UE Sydney Pty Ltd.
Major Commercial Agreement means any Commercial Agreement where the value of the consideration payable pursuant to the agreement is greater than $100,000 per annum.
Presenter means the on-air presenter or compere of a program broadcast by the Licensee.
Producer means a person responsible for the production of a program broadcast by the Licensee.
Register means the Register of Commercial Agreements referred to in Clause 4.1.
(b) if the party to a Commercial Agreement is a corporation, a related body corporate of the party for the purposes of the Corporations Act 1990; or (c) if the party to a Commercial Agreement is a representative body, the organisation that it represents.
2. Commencement This condition commences on 3 April 2000.
3. On-Air Disclosures
3.1 A Disclosure Announcement is a broadcast by a Presenter that a relevant Commercial Agreement exists.
3.2 Subject to Clause 3.4, the Licensee must broadcast a Disclosure Announcement at
the time of and as part of the broadcast of any material:
(a) broadcast pursuant to a Commercial Agreement;
(b) in which the name, or products or services, of a Sponsor are mentioned;
(c) in which an agent, employee or officer of a Sponsor is interviewed; or (d) in which a Presenter expresses an opinion or makes a comment on an issue:
3.3 If a Disclosure Announcement is made in relation to a Major Commercial Agreement, then the announcement must state that the agreement is a major commercial agreement.
3.4 A Disclosure Announcement need not be broadcast if the material broadcast is:
(b) an advertisement broadcast pursuant to an agreement between the Licensee and the advertiser provided that the advertisement is not presented in a manner whereby a reasonable listener would be entitled to assume that the
4. Register of Commercial Agreements
4.1 The Licensee must keep a Register of Commercial Agreements recording the
following particulars of each Commercial Agreement:
4.3 The Licensee must keep the Register at the station premises and must make it available for inspection free of charge upon request by any member of the public during business hours.
4.4 The Licensee must publish the Register on any website operated by or on behalf of the Licensee and must link the Register directly to the home page of that website.
5. Notifications to the ABA
5.1 The Licensee must provide to the ABA in writing the particulars set out in clause 4.1 in relation to each Commercial Agreement provided to the Licensee by each Presenter or Producer within fourteen (14) days after the Licensee is notified of those particulars by the Presenter or Producer.
6. Presenters and Producers
6.1 The Licensee must ensure that each Presenter and Producer:
6.2 The Licensee must not engage the services of any Presenter or Producer unless it is a condition of that engagement that the Presenter or Producer complies with subclauses (a) and (b) of Clause 6.1.
7. Compliance Program
7.1 The Licensee must ensure that at least twice in the first year of this condition and at least once every year thereafter all staff of the Licensee involved in the production or presentation of material broadcast by the Licensee and all Presenters and Producers undertake a training program concerning the obligations imposed on the Licensee by the Act, each Code and this condition.
7.2 The Licensee must ensure that each training program referred to in Clause 7.1 is conducted by a firm of lawyers with expertise in broadcasting law or compliance programs and that the firm, provides to the ABA at the conclusion of each training
program, a written report setting out details of:
8. Duration of Condition
8.1 This condition will cease to operate on 2 April 2003.
SECOND CONDITION - PAID ADVERTISEMENTS DISTINGUISHABLE
FROM OTHER PROGRAM MATTER
Advertisement means (a) material broadcast a substantial purpose of which is to draw public attention to, or to promote, an organisation, product or service; and
Associate of a Presenter or a Producer means any person including without limitation, a corporation or a trustee of a trust) which has, or purports to have, the right to provide the services of the Presenter or Producer to any person.